Havert v. Caldwell

• Decision Date: 18 August 1983
• Docket Number: No. 883S301,883S301
• Citation: 452 N.E.2d 154
• Parties: Jon R. HAVERT and Diane R. Havert, Nedrey Hook and Thelma Hook, Appellants, v. Claude CALDWELL and Loretta Warren, Appellees.
• Court: Indiana Supreme Court

Page 154

452 N.E.2d 154

Jon R. HAVERT and Diane R. Havert, Nedrey Hook and Thelma Hook, Appellants, v. Claude CALDWELL and Loretta Warren, Appellees.

No. 883S301.

Supreme Court of Indiana.

Aug. 18, 1983.

Joshua I. Tourkow, Tourkow, Danehy, Crell & Rosenblatt, Fort Wayne, for appellants Jon R. Havert and Diane R. Havert.

M. Robert Benson, Ronald E. James, Sowers & Benson, Fort Wayne, for appellants Nedrey Hook and Thelma Hook.

Donald R. Clifford, Clifford & Steele, P.C., Fort Wayne, for appellees.

GIVAN, Chief Justice.

This case commenced in the Allen Superior Court by Nedrey and Thelma Hook, naming Claude Caldwell and Loretta Warren as defendants. Subsequently Jon and Diane Havert joined in the action as plaintiffs. There was a change of venue from the county to Noble Circuit Court. The complaint was based on the occurrence of a multiple car accident involving all of the parties except Mrs. Havert in Fort Wayne.

Caldwell moved for partial summary judgment, and the trial court granted his motion. The appellants Hooks and Haverts appealed to the Indiana Court of Appeals. In Hook v. Caldwell, (1981) Ind.App., 426 N.E.2d 708, the Court reversed the trial court's grant of partial summary judgment and remanded the case for further proceedings. In Hook v. Caldwell, (1981) Ind.App., 428 N.E.2d 273, the Court denied Caldwell's Petition for Rehearing by written opinion. Caldwell now petitions this Court for transfer under Ind.R.App.P. 11(B).

We grant Caldwell's Petition to Transfer, vacate the opinions of the Court of Appeals in this case, and remand this case to the trial court for proceedings not inconsistent with this opinion.

The facts giving rise to this action were summarized by Judge Chipman in the first reported opinion in this case. We adopt that statement of facts as our own, as follows:

"The facts, viewed most favorably to the non-moving parties show that on September 5, 1977, Jon Havert, a policeman, and his partner were driving east on Taylor Street in Fort Wayne in search of a reported prowler. Havert pulled the police car over near the east side curb to investigate a house. Mr. Hook abruptly stopped his car behind Havert's car and the former's car was then struck in the rear by Caldwell's car.

"After searching for the prowler, which only consumed a few minutes, Havert returned to the accident which his partner was handling. Havert and Mr. Hook walked between the Hooks' and Caldwell's cars to survey the damage and Mrs. Hook was doing the same from a vantage point more towards the side. At that time Warren drove her car into the rear of Caldwell's car pushing it forward into the Hooks' car which then hit the police car. Mr. and Mrs. Hook and Officer Havert all suffered serious personal injuries caused by the impact of Warren's car."

Taylor Street is forty-three feet wide in the block in which the accidents occurred. The eastbound lane in which the accidents occurred is twenty-one feet wide. It was further established that at the time the two accidents occurred, nearly 11:00 P.M., parking was permitted in the curbside lane of the eastbound lane of Taylor Street, i.e., the lane in which the collisions occurred, although at the time there were no cars other than those involved in the accidents parked in that lane in that block of the street.

Caldwell's Motion for Partial Summary Judgment was premised on alternative theories as to why as a matter of law he was entitled to a judgment in his favor. First, he contended the Hooks and Havert were contributorially negligent by voluntarily stationing themselves between the Hooks' and Caldwell's vehicles, that by doing so they were placing themselves in a position of great peril such that if the latter car was impelled forward by, for example, another car colliding with it from the rear, they would be pinned in between the two and injured. Second, he offered that he was entitled to judgment on the theory his negligence, if any, had no more effect than to create a condition by which subsequent injury attributable to the intervening act of Warren occurred, that the condition he created was not one from which the subsequent intervening act of Warren could reasonably be foreseen or anticipated, and therefore his act was not the proximate cause of the plaintiffs' injuries.

The trial court granted Caldwell's motion on the basis of the first theory offered in support thereof, that the Hooks and Havert were contributorially negligent. However, the Court of appeals held the trial court erred in doing so:

"At a minimum we believe a genuine issue exists as to whether the actions of Mr. and Mrs. Hook and Officer Havert constituted contributory negligence. We do not believe it can be said as a matter of law that reasonable men would not stand between two automobiles that were essentially situated no differently than two cars parked legally on the street. Although it is true the second collision occurred in substantially the same manner as the first, a party has the right to assume others who owe him a duty of reasonable care will exercise such care unless the party has notice to the contrary. Smith v. Insurance Company of North America, (1980) Ind.App., 411 N.E.2d 638. We do not believe that just because one drunk driver crashed into the rear of the Hooks' car the injured parties were put on notice that the other cars using Taylor Street would also not exercise the duty of reasonable care owed to them." (Emphasis in original.) Hook v. Caldwell, supra, 426 N.E.2d at 711.

Ind.R.Tr.P. 56 provides for the motion for summary judgment. The rule provides in pertinent part:

"(B) For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted ... may, at any time, move ... for a summary judgment in his favor as to all or any part thereof. * * *

"(C) Motion and proceedings thereon. * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or such evidence." Id.

Though the Hooks and Haverts claim otherwise, we find at the time of the motion there were no material issues of fact in dispute. There was no dispute as to the layout of Taylor Street at the time of the accidents. It had been conclusively established that the street was wide enough to accommodate two cars traveling abreast in the eastbound lane, and that at the time of the accidents all four cars were in the curbside lane in which both parking and driving were permitted. We would note in this regard the assertions of the appellees Hooks and Haverts that there were disputes as to material issues of fact. But we find none of these disputes of fact are disputes over material issues of fact insofar as they relate to Caldwell's liability vis a vis the plaintiffs. Though there was a dispute between the parties as to the operational status of the taillights of Caldwell's car when Warren ran into it, this is not a disputed issue of material fact in light of the fact there was no dispute that Caldwell's car was in a legal parking lane when Warren ran into it. A fact is material for purposes of ruling on a motion for summary judgment when its existence facilitates resolution of any of the issues involved. Carrow v. Streeter, (1980) Ind.App., 410 N.E.2d 1369.

Before turning to the substantive law of negligence as it applies in this case, we call attention to the rule that on appellate review the trial court's judgment will be affirmed if sustainable on any theory or basis found in the record. Thornton v. Pender, (1978) 268 Ind. 540, 377 N.E.2d 613; Fort Wayne Patrolmen's Benevolent Association, Inc. v. City of Fort Wayne, (1980) Ind.App., 408 N.E.2d 1295. This rule applies to the grant of a motion for summary judgment when, even though the grant of the motion is not sustainable on the theory reflected in the trial court's findings of fact and conclusions of law it is sustainable, on the basis of the substantive law, on another theory. Fort Wayne Patrolmen's Benev. Ass'n., Inc. v. Fort Wayne, supra. This is particularly true where the parties have addressed themselves to the merits of the theory on which the judgment is ultimately sustained. See also Ind.R.App.P. 15(N).

Turning to the substantive law of negligence, and remembering that the trial court's grant of partial summary judgment in this case was premised on the supposed contributory negligence of the Hooks and Havert, we first find the trial court's ruling on that basis was incorrect. Contributory negligence of the plaintiff is conduct on his part that is a legally contributing cause cooperating with the negligence of the defendant and which falls below the standard to which he is required to conform for his own protection. Memorial Hospital of South Bend, Inc. v. Scott, (1973) 261 Ind. 27, 300 N.E.2d 50; Huey v. Milligan, (1961) 242 Ind. 93, 175 N.E.2d 698.

We find Caldwell's argument that the Hooks and Havert were contributorially negligent by standing between the two cars, such that in the event the latter vehicle was struck from behind by another car they would be pinned in between the two, is unpersuasive. The authorities he cites in support of this conclusion are not controlling. In Phillips v. Croy, (1977) 173 Ind.App. 401, 363 N.E.2d 1283, the injured plaintiff was found to be contributorially negligent when he was standing between two stopped trucks, one of which was struck by an oncoming car, and he, like the Hooks and Havert in the case at bar, was pinned between the two....